Public Charge Grounds of Inadmissibility and Deportability: Legal Overview

Kate M. Manuel
Legislative Attorney

The Immigration and Nationality Act (INA) has long provided for aliens’ exclusion and deportation from the United States on “public charge” grounds. Under current law, aliens outside the United States who seek to obtain visas at U.S. consulates overseas, or admission at U.S. ports of entry, are generally denied entry if they are deemed “likely at any time to become a public charge.” Aliens within the United States who seek to adjust their status to that of lawful permanent resident (LPR), or who entered the United States without inspection, are also generally subject to this ground of inadmissibility. Similarly, LPRs and other aliens who have been admitted to the United States are removable if they become a public charge within five years after the date of their entry due to causes that pre-existed their entry. These public charge grounds have recently been of interest because of concerns, among some Members of Congress and the public, regarding noncitizens’ receipt of public assistance.

The INA does not expressly define what it means for an alien to be a public charge, and, prior to 1996, there was no statutory guidance on what was to be considered in determining whether an alien is inadmissible or deportable (removable) on public charge grounds. Then, in 1996, the INA was amended to require that certain factors be taken into account when determining whether aliens are inadmissible on public charge grounds, including the alien’s age, health, family status, financial resources, education, and skills. There still is no similar guidance on the public charge ground of deportability.

Given this general lack of statutory guidance, the executive and judicial branches initially construed the meaning of public charge in adjudicating cases involving individual aliens. In so doing, administrative authorities interpreted public charge differently for purposes of the grounds of inadmissibility than for the grounds of deportability. Specifically, public charge was construed broadly in the context of admissibility, with determinations based on a “totality of the circumstances” test that considered factors like those codified in the INA in 1996. In contrast, in the context of deportability, “public charge” was construed more narrowly. Aliens could only be found to be deportable on public charge grounds if (1) they received government assistance that they were legally obligated to repay, (2) the government entity providing the assistance demanded repayment, and (3) the alien or the alien’s sponsor was unable to pay.

Following the enactment of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996, executive agencies issued guidance regarding the public charge grounds. While PRWORA generally restricts noncitizens’ eligibility for “public benefits,” it permits them to receive specified benefits, and its enactment raised questions about whether aliens who receive benefits for which they are eligible under PRWORA could potentially be removable on public charge grounds. Immigration officials addressed these questions in a 1999 policy letter that defined public charge, and identified which benefits are considered in public charge determinations. This policy letter underlies current regulations and other guidance on the public charge grounds of inadmissibility and deportability.

Collectively, the various sources addressing the meaning of public charge suggest that an alien’s receipt of public benefits, per se, is unlikely to result in the alien being deemed removable on public charge grounds. Neither the INA nor implementing regulations address the role that receipt of public benefits plays in public charge determinations. Other agency guidance and court decisions indicate that, while receipt of certain public benefits could be considered in public charge determinations, other factors are also considered (e.g., age, obligation to repay).


Date of Report: September 9, 2013
Number of Pages: 17
Order Number: R43220
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The Framework for Foreign Workers’ Labor Protections Under Federal Law

Margaret Mikyung Lee
Legislative Attorney

Jon O. Shimabukuro
Legislative Attorney

One challenge of immigration law has been to balance the interests of the domestic workforce with employer interests in hiring foreign workers who are not already authorized to work in the United States while preventing the exploitation of foreign workers. There are three main sources of labor protections for foreign workers in the United States: (1) the conditions imposed on employers hiring foreign workers through the Department of Labor (DOL) labor certification/attestation and DHS petition process; (2) federal labor laws stipulating that employers adhere to certain requirements governing wages and other conditions; and (3) worker rights under state and local laws regarding labor, contracts, and torts.

Streamlining and easing certain labor and immigration requirements that are perceived as unnecessarily onerous and insufficiently flexible may benefit certain employers with immediate labor needs. On the other hand, stronger protections for foreign workers may not only guard those workers from exploitation and abuse but may also serve to protect the interests of the domestic workforce by reducing to some employers the attractiveness of hiring foreign workers who are not already authorized to work in the United States. Legislative proposals to reform employmentbased visa programs in the current Congress reflect some of these tensions.

This report will discuss the DOL labor certification/attestation and Department of Homeland Security (DHS) petition process as well as aspects of the applicability of federal labor laws to foreign workers. It will also briefly address state and local laws regarding labor, contract, and torts that sometimes provide foreign workers with additional rights. Federal labor laws that apply regardless of immigration status, including those concerning health and safety and employment discrimination, as well as state occupational certification and licensing requirements are outside the scope of this report.

For a comprehensive look at employment-based immigration and related federal labor policies and programs, see CRS Report RL33977, Immigration of Foreign Workers: Labor Market Tests and Protections, by Ruth Ellen Wasem; CRS Report RL32044, Immigration: Policy Considerations Related to Guest Worker Programs, by Andorra Bruno; CRS Report R42434, Immigration of Temporary Lower-Skilled Workers: Current Policy and Related Issues, by Andorra Bruno; CRS Report R43161, Agricultural Guest Workers: Legislative Activity in the 113th Congress, by Andorra Bruno; CRS Report RL34739, Temporary Farm Labor: The H-2A Program and the U.S. Department of Labor’s Proposed Changes in the Adverse Effect Wage Rate (AEWR), by Gerald Mayer; and CRS Report RS21186, Hoffman Plastic Compounds v. NLRB and Backpay Awards to Undocumented Aliens, by Jon O. Shimabukuro.


Date of Report: September 11, 2013
Number of Pages: 12
Order Number: R43223
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Immigration-Related Worksite Enforcement: Performance Measures

Andorra Bruno
Specialist in Immigration Policy

In 2009, the Department of Homeland Security (DHS) issued new guidance on immigration-related worksite enforcement. Under the guidelines, DHS “will use all available civil and administrative tools, including civil fines and debarment, to penalize and deter illegal employment.” According to 2010 estimates, there are some 8.0 million unauthorized workers in the U.S. civilian labor force.

DHS’s U.S. Immigration and Customs Enforcement (ICE) is responsible for immigration-related worksite enforcement, or enforcement of the prohibitions on unauthorized employment in Section 274A of the Immigration and Nationality Act (INA). The INA Section 274A provisions, sometimes referred to as employer sanctions, make it unlawful for an employer to knowingly  hire, recruit or refer for a fee, or continue to employ an alien who is not authorized to be so employed. Today, ICE’s worksite enforcement program is focused primarily on cases that involve critical infrastructure facilities and cases involving employers who commit “egregious violations” of criminal statutes and engage in worker exploitation.

Employers who violate INA prohibitions on the unlawful employment of aliens may be subject to civil monetary penalties and/or criminal penalties. Criminal investigations may result in defendants being charged with crimes beyond unlawful employment and being subject to the relevant penalties for those violations.

Various measures are available to examine the performance of ICE’s worksite enforcement program. They include Final Orders for civil monetary penalties, administrative fines, administrative arrests, criminal arrests, criminal indictments and convictions, and criminal fines and forfeitures. In addition to examining annual changes and trends in the various performance measure data, these data can be considered in relation to the estimated size of the unauthorized workforce or the potential number of employers employing these workers. When considered in this context, ICE’s worksite enforcement program can seem quite limited.

Enforcement activity by the Department of Labor (DOL) is also relevant to a discussion of federal efforts to curtail unauthorized employment. DOL, which is responsible for enforcing minimum wage, overtime pay, and related requirements, focuses a significant percentage of its enforcement resources on low-wage industries that employ large numbers of immigrant—and presumably large numbers of unauthorized—workers.

Date of Report: August 7, 2013
Number of Pages: 16
Order Number: R40002
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